Defendant avers further that the warrant executed by United
States Magistrate Judge Gary L. Sharpe which allowed the Federal
Bureau of Investigation ("FBI") to search defendant's home and
seize his personal computer among other things was not supported
by probable cause since the allegations in the warrant
application were "stale" and did not establish probable cause
that the computer activity related to the AOL account billed to
defendant's residence was actually occurring at the residence.
The Court disagrees.
In assessing whether probable cause supported the issuance of
the warrant, a Court must consider whether, under the totality
of the circumstances, the application in support of the warrant
contained two factual showings: "first, that a crime was
committed, and second, that there is probable cause to believe
that evidence of such crime is located at the residence."
United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983);
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983). "In considering the quantum of evidence
required, it is only a probability, and not a prima facie
showing of criminal activity that is the standard of probable
cause." Travisano, 724 F.2d at 346. Once a magistrate judge
determines that probable cause exists, a reviewing court accords
great deference to that determination. See Spinelli v. United
States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969);
United States v. Martin, 157 F.3d 46, 52 (2d Cir. 1998);
Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. 2317.
"In determining whether probable cause exists, the magistrate
is required to assess whether the information adduced in the
application appears to be current, i.e., true at the time of the
application, or whether it has become stale." Rivera v. United
States, 928 F.2d 592, 602 (2d Cir. 1991). Where an affidavit
contains facts indicating that the suspected activity is
continuing in nature and when the property is not likely to be
destroyed, the passage of time between the receipt of the
information and the search becomes less significant in assessing
probable cause United States v. Smith, 9 F.3d 1007, 1014 (2d
Cir. 1993). In child pornography cases, courts have repeatedly
recognized that collectors of child pornography tend to retain
this material. As Senior District Judge Munson of this District
The observation that images of child pornography are
likely to be hoarded by persons interested in those
materials in the privacy of their homes is supported
by common sense and the cases. Since the materials
are illegal to distribute and possess, initial
collection is difficult. Having succeeded in
obtaining images, collectors are unlikely to quickly
destroy them. Because of their illegality and the
imprimatur of severe social stigma such images carry,
collectors will want to secret them in secure places,
like a private residence. This proposition is not
novel in either state or federal courts: pedophiles,
preferential child molesters, and child pornography
collectors maintain their materials for significant
periods of time.
United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y. 1996);
see also United States v. Ricciardelli,
graphic files containing child pornography to defendant's
computer because affidavit explained that collectors of child
pornography rarely if ever dispose of it, and because affidavit
explained how, even if defendant had deleted files, they could
still be retrieved by computer expert).
In this case, the warrant affidavit submitted by Special Agent
Derrane of the FBI averred that the user of the AOL account in
question, who had received numerous images of child erotica and
child pornography over an almost three-year period, would likely
retain the images he collected and that these images could be
retrieved by a forensic computer analysis. Moreover, the
affidavit, which detailed the daily AOL account activity, "most
notably between 6 p.m. and 2 a.m." amply set forth probable
cause to suggest that the computer activity was occurring at the
Based on the above, defendant's motion for suppression of
physical evidence seized from his home and computer is DENIED.
B. Suppression of Defendant's Statements
As referenced above, any motion to suppress must be
accompanied by an affidavit from someone asserting personal
knowledge of the alleged constitutional deprivation. Because
defendant has failed to produce competent evidence in admissible
form of any misconduct on the part of law enforcement or any
constitutional deprivation, his motion for suppression of his
statements is DENIED.
C. Return of Seized Evidence to Defendant
Defendant contends that he is entitled to return of the
contraband material at issue in this case during the pendency of
these criminal proceedings. He is mistaken. The government has
indicated it will make any and all evidence seized from
defendant's home and computer available to him for inspection
but not copying upon reasonable notice. Defendant provides no
factual basis for his assertion that physical possession of the
government's evidence is necessary to adequately prepare his
defense nor does he cite legal authority which suggests he is
entitled to return of illegal materials seized in the course of
a criminal investigation. Based thereupon, defendant's motion
for a protective order requiring the government to provide him
with copies of its physical evidence is DENIED.
D. Dismissal of the Indictment
Defendant asserts he is entitled to dismissal of the
indictment against him pursuant to Rule 7 of the Fed.R.Crim.P.
on the ground that the evidence before the grand jury was
insufficient. Defendant also moves for inspection of the grand
jury minutes. Courts do not review the sufficiency of the
evidence presented to a federal grand jury. See Costello v.
United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed.
397 (1956). Moreover, review of grand jury minutes is "rarely
permitted without specific allegations of government
misconduct," United States v. Torres, 901 F.2d 205 (2d Cir.),
cert. denied 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229
(1990). Defendant has failed to allege any specific,
substantiated abuse of the grand jury process and has failed to
particularize his need for pre-trial disclosure of grand jury
minutes. Consequently, defendant's motion for dismissal of the
indictment and/or inspection of the grand jury minutes is
E. Request for Giglio Material
Defendant requests that the government turn over any and all
information concerning agreements between the prosecution and
potential witnesses in this case. The
government does not state whether any such material exists. The
government is hereby ORDERED to advise defense counsel within
ten (10) days of the existence of any such information.
Defendant's request for disclosure of Giglio material is
F. Request for Brady Material
Defendant requests that the government turn over any and all
information which could be deemed exculpatory in this case.
Here, the government acknowledges its continuing duty under
Brady and has acknowledged that should exculpatory evidence
become available in the future or be discovered it will be
provided to defendant. Because the government has stated that it
will disclose any material exculpatory evidence in its
possession upon learning of such evidence, defendant's demand
for Brady materials is DENIED.
G. Expert Witness Disclosure
Defendant seeks an order requiring the government to provide
expert witness disclosure. The government does not state whether
it has retained any experts who will testify at defendant's
trial but pursuant to Rule 16 of the Fed.R.Crim.P. it must so
advise defendant prior to trial. Since the government
acknowledges its discovery obligations under the Court's
pre-trial order, defendant's motion on this issue is DENIED.
H. Leave to Renew Motions
Defendant seeks leave to renew motions if necessary based on
new information. The defendant will be permitted to renew his
present motions only for good cause shown should additional
discovery produce new material facts and issues. The Court will
not, however, permit defendant to renew motions that rehash the
issues presented in the current omnibus motion and will not
grant leave to make additional motions based on information and
legal arguments which could have been brought through the
exercise of due diligence as part of the motions before the
Court today. The Court will exercise its discretion in
determining the validity of any future motions. Accordingly,
defendant's request is DENIED.
In sum, defendant's motion for: (1) suppression of physical
evidence is DENIED; (2) suppression of defendant's statements is
DENIED; (3) a protective order requiring the government to turn
over to defendant or provide him with copies of seized evidence
is DENIED; (4) dismissal of the indictment and/or for inspection
of grand jury minutes is DENIED; (5) Giglio material is
DENIED; (6) Brady material is DENIED; (7) expert witness
disclosure is DENIED; and (8) leave to renew motions in light of
future evidence discovered by defendant is DENIED. It is further
ORDERED that the government is to advise defense counsel of
the existence of any Giglio material within ten (10) days.
IT IS SO ORDERED.
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